No fault or no rights?: a critical consideration of the New South Wales workers compensation journey provisions

From the inception of Workers' Compensation in New South Wales in 1926, there has been provision made for compensating those workers who are injured on their way to or from work. The "journey claim", has always been an extremely controversial entitlement, arousing both passionate support and ardent opposition from politicians, the judiciary, employers and unions. In 1989, under the Liberal Party, a worker's right to journey claims was significantly qualified by the insertion of "fault". That is, the worker would be entitled to claim compensation for a commuting injury provided it was not proven that the accident was "partly or wholly" his/her fault. The entire system of journey claims is predicated on the assumption that there are separate spheres of responsibility - the public or "work" sphere, in which employers are responsible for the well being and compensation of their workers, and the "private", where this responsibility ends. The problem with journey claims is that these injuries straddle both spheres, and do not fall comfortably into one or the other. The decision to deem a journey as "within the employer's responsibility", is therefore a policy choice - and it is a choice that goes to the heart of the question of who should shoulder the burden of injured workers in society. In 1989 the Liberal Government of this state made such a decision, and enacted section 10 (1 A): to firmly demarcate the sphere of employer responsibility to the workplace, and to those journey accidents that could be considered "an act of God". In doing so the Government made a policy decision that was based firmly in liberal ideology, and firmly in favour of employers and the economic "bottom line". Yet perhaps what Parliament has not accounted for is the way in which law, and indeed social policy, can be changed or softened through the powers of judicial interpretation and discretion. In what I can only describe as a "muted protest", the judiciary of New South Wales has reacted violently to the inclusion of fault within a system of workers' compensation, and through the adoption of the negligent standard, has circumvented the harshness of this legislation by enabling workers who are "at fault" to succeed in their claims for compensation. The recent judicial history of section 10 (1 A) raises questions that go to the very heart of social policy. The whole issue of fault and the artificial construction of "employer's realm of responsibility" really asks us to consider what should our workers compensation legislation be attempting to achieve, and whose interests does the present system serve?